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LORD DENNING, MAGNA CARTA AND MAGNANIMITY

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DOI: 10.5750/dlj.v27i0.1127

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Denning Law Journal 2015 Vol 27 pp 106-129

LORD DENNING, MAGNA CARTA AND

MAGNANIMITY
Simon Lee

Lord Denning‘s assessment of Magna Carta at its 750th anniversary

has stood the test of half a century: ―the greatest constitutional document
of all times—the foundation of the freedom of the individual against the
arbitrary authority of the despot‖.1 His longer, but still succinct, article for
The Times for the same anniversary has not been bettered.2 Yet at the time
of Magna Carta‘s 800th anniversary we have lost sight of two other works
of Lord Denning which could make a distinctive contribution to our
current constitutional debates. Whereas Lord Neuberger has linked the
real Magna Carta to the fictitious Holy Grail in an entertaining lecture3 on
law and myth, for legal scholars the Holy Grail is a long lost text or case.
An earlier essay4 identified the links between the opening clause of Magna
Carta 1215 and s 13 of the Human Rights Act 1998 as worthy of
rediscovery. This article presents two further candidates: a neglected
lecture on Borrowing from Scotland5 by Lord Denning in 1961 and a
neglected Court of Appeal decision in 1975 applying Magna Carta, in
which Lord Denning presided as Master of the Rolls, R v Secretary of
State for the Home Office, ex p Phansopkar.6 Between them, they can


Fellow of St Edmund‘s College, Cambridge, Emeritus Professor of
Jurisprudence, Queen‘s University Belfast, and Visiting Professor of Law,
University of Buckingham. With thanks to James Lee, James Slater, the Editor
and anonymous reviewers.
1
Lord Denning, quoted by successors as Master of the Rolls, Lord Bingham and
Lord Dyson, the latter in Robin Griffith-Jones & Mark Hill (eds) Magna Carta,
Religion and the Rule of Law (Cambridge University Press 2015).
2
Lord Denning, reprinted in The Family Story (Hamlyn, London 1982) 229.
3
Lord Neuberger, Magna Carta and the Holy Grail, Lincoln‘s Inn, 12 May 2015,
https://www.supremecourt.uk/docs/speech-150512.pdf
4
Lee, ‗The Cardinal Rule of Religion and the Rule of Law‘ in Robin Griffith-
Jones and Mark Hill QC (eds), Magna Carta, Religion and the Rule of Law
(Cambridge University Press 2015) 314-333.
5
Lord Denning, Borrowing from Scotland, 26 th David Murray Foundation
Lecture, University of Glasgow, 5 May 1961, printed by Jackson, Son & Co,
printers to the University, 1963.
6
R v Home Secretary, ex p Phansopkar (1976) 1 QB 606.

106
 THE DENNING LAW JOURNAL

offer refreshing insights into contemporary constitutional controversies.

The main focus here, after drawing attention to the lecture on
Borrowing from Scotland, is the Phansopkar case‘s use of Magna Carta. It
is instructive to see how Magna Carta has been used in practice, between
its 750th and 800th anniversaries and well ahead of the Human Rights Act
1998. It is also salutary to consider some of those involved in the case,
their earlier lives and what happened next. Finally, and briefly, I attempt
to link these two seemingly disparate parts of Lord Denning‘s legacy.
There is no mention of Magna Carta in the lecture and no mention of
Scotland in the Magna Carta case (or in Magna Carta itself because it was,
of course, a foreign country at the time) but forging connections between
them is a way of drawing lessons for our wider constitutional
controversies.
In 2015, the 800th anniversary of Magna Carta coincides with a new
Conservative government in Westminster pledging to ―control
immigration‖ and proposing three significant constitutional changes
which were in its manifesto: English votes for English laws, in the
aftermath of the 2014 referendum rejecting independence for Scotland; a
second referendum on membership of the European Union, the first
having been in 1975; and a British Bill of Rights to replace the Human
Rights Act 1998.7 The last of these is already proving problematic and has
been delayed, with no commitment on timing in the Queen‘s Speech.8 One
common theme is the desirability, or undesirability, of external influences
on the legal system of England and Wales, whether from Scotland or
Brussels or Luxembourg or Strasbourg. Through various
misunderstandings, the different concerns have been conflated into a
distrust of ―European‖ judges or other law-makers from outside this legal
system. Supporters of the European Convention and its incorporation have
not helped. The 1997-2001 Labour government promoted the Human
Rights Act under the slogan Bringing Rights Home and then Rights
7
https://www.conservatives.com/Manifesto.
8
Contrast the detail in the Queen‘s Speech of the first two with the third:
My Government will bring forward changes to the Standing Orders of the House
of Commons. These changes will create fairer procedures to ensure that decisions
affecting England, or England and Wales, can be taken only with the consent of
the majority of Members of Parliament representing constituencies in those parts
of our United Kingdom. My Government will renegotiate the United Kingdom‘s
relationship with the European Union and pursue reform of the European Union
for the benefit of all Member States. Alongside this, early legislation will be
introduced to provide for an in-out referendum on membership of the European
Union before the end of 2017 [EU Referendum Bill]… My Government will
bring forward proposals for a British Bill of Rights.

107
 LORD DENNING, MAGNA CARTA & MAGNANIMITY

Brought Home) as if it were a good thing for rights to be ―at home‖, as if

rights were not at home from 1215 and as if rights were now not to be
resolved on the Continent. Now the Conservative government is trying
both to ―scrap‖ the Human Rights Act and to rely on much the same
argument (note the title of a think tank report, Rights Brought Back
Home9) that we should bring rights home into a British Bill of Rights. Yet
the erstwhile supporters of that very process have become so attached to
the Human Rights Act 1998 that they are now vehemently against
whatever it is that the government thinks it will achieve for (or against)
human rights.
Whether or not the past can be deemed a foreign country10 for these
purposes, it is similarly instructive to question whether there is and should
be a place in the contemporary constitution for Magna Carta, not just as a
part of what Walter Bagehot called the ―dignified‖ constitution but also as
a working part of the ―efficient‖ constitution. Bagehot did not dwell on
Magna Carta in his own book on The English Constitution.11 Neither did
RFV Heuston mention Magna Carta in his Essays on Constitutional
Law.12 Leo Amery‘s Thoughts on the Constitution13 did not involve many
thoughts on Magna Carta, merely passing mentions. Will Magna Carta be
forgotten once the 800th anniversary celebrations are over, only to
languish until its 900th and 1000th anniversaries? Or can its renewed
application, whether in its own right or as part of a new British Bill of
Rights, be a fitting legacy from the mass of lectures, exhibitions and other
events this year?
Compared to Bagehot‘s dignified language about the dignified
constitution, Lord Sumption, an historian turned lawyer and now a
Supreme Court Justice, has been blunt about over-exuberant celebrations
of Magna Carta by lawyers in the run-up to the 800th anniversary.14 He
dismisses pious praise of Magna Carta as ―high-minded tosh‖ and is
scathing about relying for the Rule of Law on rich barons: ―Do we need to

9
See also the foreword by Lord Hoffmann to a report for the independent think
tank Policy Exchange http://conservativehome.blogs.com/files/px-bringing-
rights-back-home.pdf
10
LP Hartley, The Go-Between (Penguin 1953): the opening sentence reads: ‗The
past is a foreign country; they do things differently there.‘
11
Walter Bagehot, The English Constitution (Oxford 2001).
12
RFV Heuston, Essays in Constitutional Law (London Stevens and Sons Ltd
1961).
13
Leo Amery, Thoughts on the Constitution (OUP 1947).
14
Lord Sumption, ‗Magna Carta Then and Now‘, address to the Friends of the
British Library, 9 March 2015, https://www.supremecourt.uk/docs/speech-
150309.pdf

108
 THE DENNING LAW JOURNAL

derive our belief in democracy and the rule of law from a group of
muscular conservative millionaires from the north of England, who
thought in French, knew no Latin or English, and died more than three
quarters of a millennium ago? I rather hope not.‖ This could be described
as a bit rich from someone whose own robust approach could itself count
as ―muscular‖15 and ―conservative‖16 and whose success at the Bar has
been widely reported to have made him a millionaire,17 albeit not one
from the north.
Lord Sumption could not possibly have been criticising Lord
Neuberger‘s lecture18 on Magna Carta and the Holy Grail because that
came later and indeed praises Lord Sumption‘s analysis. The President of
the Supreme Court, Lord Neuberger, tells us he was ―somewhat taken
aback‖ to be told, by his judicial assistant,19 that the rapper Jay Z has an
album with Magna Carta in its title (Magna Carta Holy Grail). He
confessed to not understanding why the album title referred to Magna
Carta: ―Listening to the music, digesting the lyrics, and reading its
Wikipedia entry leave me little wiser as to why the album has the title that
it does, but I suppose that when it comes to subtle allusions, rap-singers
may have it over judges.‖ Quite so. This could be a metaphor for our
times, that whilst judges know who The Beatles were,20 they think they

15
On his muscular approach as a QC, see various accounts of his actions when
representing the Foreign Office, writing to Lord Neuberger to press for a
paragraph in a judgment to be redacted, eg
http://www.theguardian.com/world/2010/feb/10/binyam-mohamed-torture-
annotated-letter.
16
On his conservative approach to judging, see Sir Stephen Sedley‘s scathing
critique of Lord Sumption‘s critique of Sir Stephen Sedley and other more
radical, activist judges, ‗Judicial Politics‘, London Review of Books 23 February
2012, http://www.lrb.co.uk/v34/n04/stephen-sedley/judicial-politics.
17
The Daily Telegraph estimated his earnings at the Bar as £2m pa
http://www.telegraph.co.uk/news/uknews/law-and-order/7207378/Profile-of-QC-
at-centre-of-Binyam-case.html, The Daily Mail at £3m pa
http://www.dailymail.co.uk/news/article-1263225/Binyam-Mohamed-legal-
torture-case-cost-taxpayers-750-000.html and The Sunday Times at £8m for one
case. www.thesundaytimes.co.uk/sto/news/uk_news/Society/article1121765.ece.
18
Lord Neuberger (n 3).
19
Hugh Comber (n 3).
20
The legal journalist Marcel Berlins doubts that any judge really asked this, or
did not know, even if the same newspaper attributes it in its obituary columns to
Judge James Pickles, without citing a particular occasion. See
http://www.theguardian.com/commentisfree/2007/may/21/uk.law
http://www.theguardian.com/law/2010/dec/22/judge-james-pickles-dies

109
 LORD DENNING, MAGNA CARTA & MAGNANIMITY

can also understand modern music (or law) by listening and staring at
accompanying texts without appreciating context, subtext and underlying
culture. Lord Neuberger gives no hint of having grasped that Jay Z‘s real
surname is Carter and that the music millionaire formerly known as
Shawn Carter was having fun in praise of himself (Great Carter, get it?). 21
More seriously, there is something lacking in Lord Neuberger‘s
approach in his lecture to assessing the importance of Magna Carta in
modern courts. Despite having been one of Lord Denning‘s successors as
Master of the Rolls, Lord Neuberger ignored the Court of Appeal in
considering the impact of the 1215 Charter by just searching the on-line
database Bailii for House of Lords or Supreme Court decisions which
mentioned Magna Carta in the last 120 years, finding only ten.22 He thus
missed the case which I have in mind as a way of commemorating Magna
Carta and which merits consideration of how it might be applied in years
to come, R v Secretary of State for the Home Office, ex p Phansopkar
from 1975. So far Bailii is comprehensive below our highest court only
from 1996, only featuring earlier Court of Appeal judgments if attention is
drawn to a landmark decision. Phansopkar deserves that accolade.
The Supreme Court Justices lecturing on Magna Carta23 have not
mentioned this Phansopkar case. More generally, they and others have
been lecturing on the wider constitution24 and even the Union25 without
addressing the lecture by Lord Denning. The danger of anyone offering an
alternative view on Magna Carta is, as Lord Sumption claimed, that ―It is
impossible to say anything new about Magna Carta unless it is mad.‖26
Even then, he suspects someone else will have said it. I have already
offered a different perspective on Magna Carta. Although dismissed as
peripheral, s 13 of the Human Rights Act 1998 is an extended version of
Magna Carta‘s first clause on freedom of religion.27 Section 13 is now
being mentioned as significant in the government‘s deliberations on its
manifesto commitment to replace the Human Rights Act with a British

21
Lee (n 4) 320.
22
Neuberger (n 3).
23
Neuberger (n 3) and Sumption (n 14).
24
Neuberger, Hale https://www.supremecourt.uk/docs/speech-150205.pdf Reed
http://www.innertemple.org.uk/downloads/members/lectures_2013/lecture_reed_
2013.pdf
25
Most egregiously, Lord Sumption, even when giving a lecture to the Denning
Society on This Disunited Kingdom: England, Ireland and Scotland, 5 November
2013, https://www.supremecourt.uk/docs/speech-131105.pdf
26
Sumption (n 14).
27
Lee (n 4).

110
 THE DENNING LAW JOURNAL

Bill of Rights. It only takes the same will to rehabilitate both the idea of
Borrowing from Scotland and the Court of Appeal‘s example of using
Magna Carta.

THEY COME OVER HERE … (PART ONE)

Fear, dislike and distrust of the other is not confined to contemporary

debates on immigration or Unions. A disrespectful phrase has become a
sinister by-word for prejudice: ―They come over here, taking our …‖
(jobs, houses, and so on). So of whom was it said, and when was it said,
that, ―They have pounced upon us, like swarms of locusts, into every
quarter and every scene of life … And when there is anything to be got,
you may be sure to find a number…conven‘d, like Hounds over a Carrion:
or flies in the shambles‖?28
Lord Denning had a more flowing way of talking about the influence
of European law as an incoming tide29but those who think of him as a
―Little Englander‖ who might have made this remark in the last century
are wide of the mark. The people being attacked by the English press in
this instance were the Scots in 1746. In particular, the rumour was that a
Scot called William Murray was going to be made a judge in England.
Lord Denning, in an outstanding but neglected lecture, does us a service
by reporting this xenophobia and the lawyer‘s response to his critics,
which was to point out anonymously that if they did not like the Scots,
then the easy remedy would be to repeal the Act of Union of 1707. This
lawyer from Scotland did indeed become a judge and then, ten years later,
William Murray became the Lord Chief Justice of England, taking the title
Lord Mansfield. For 32 years, he held that high office with the utmost
distinction. He is especially praised on either side of the Atlantic for the
release of a slave in the Somersett30 case and for recognising the right to
free speech in the John Wilkes case.31Despite not mentioning Magna
Carta in either, Lord Mansfield has come to represent the spirit of Magna
Carta as the archetypal English judge, fiercely independent, championing
the cause of freedom under the law. Yet he was born at Scone and in
many ways, even though he left Scotland at the age of 14, he applied
Scottish thinking and law in his English setting. This is explained in the
substance of Lord Denning‘s lecture. He records Lord Mansfield‘s
admiration of Scottish writers on law in Stair, Mackenzie and Craig. Then

28
Denning (n 5) 7.
29
Bulmer v Bollinger [1974] Ch 401.
30
Somersett‘s case (1771) 20 State Trials 1-82, quoted at 16.
31
R v Wilkes (1768) 98 ER 327, 347.

111
 LORD DENNING, MAGNA CARTA & MAGNANIMITY

he pays tribute to Lord Mansfield‘s following of Scottish law in

commercial matters, focusing on principles.32 Next he singles out for
praise Lord Mansfield‘s development of the action for unjust enrichment,
aligning law and equity, following Roman Law and Scots law.33 Finally,
Lord Denning praises Lord Mansfield for doing ―his best to bring the
English law into line with Scots law‖34 in contract, whether or not there
was consideration. It will not have escaped those familiar with Lord
Denning‘s jurisprudence that Lord Mansfield is being lauded in all these
respects for having anticipated how Lord Denning would have liked the
law to have developed. Where Lord Mansfield was thwarted, as with
contract, Lord Denning would ―very much like to see the English take a
leaf out of Scotland‘s book‖.35 And where Lord Mansfield was criticized,
as by Lord Redesdale who thought ―Lord Mansfield had in his mind
prejudices derived from his familiarity with the Scots law‖,36 Lord
Denning believes that ―time has shown that these criticisms were not
merited‖.37
Admittedly, there is a difference between judicial decision-making
(including some development of the law) and elected law-making.
Nevertheless, at least a judicious judicial Scottish vote for English laws
can be wholly admirable.
Lord Denning might not be the most obvious candidate as a cheer-
leader for Scottish judges in the English legal system. If we continue to
ignore the lecture, of course, that assumption will prevail. But why did
Lord Denning choose this topic at that time? Presumably, he was asked to
give a prestigious lecture and chose a theme which would have appealed
to his audience in Scotland. It also played to his own interest in great
judges and history. Above all, however, Lord Denning saw himself as an
outsider to the English legal establishment, a grammar school38 boy with a
distinctive Hampshire burr of an accent, and was well disposed to others
of similar talent who brought something different to our courts. Lord
Mansfield came from a much more privileged background but he

32
Denning (n 5) 10.
33
Eg Moses v Macfarlen (1760) 2 Burrow at 1012, cited by Lord Denning (n 5)
12.
34
Denning (n 5) 13.
35
Ibid 15.
36
Ibid 12.
37
Ibid 3.
38
See Lee, ‗Lord Denning, Margaret Thatcher, Law and Society‘ (2013) 25 The
Denning Law Journal 159, 160: ‗Both rose to high office from humble beginnings
above family shops‘.

112
 THE DENNING LAW JOURNAL

succeeded as an outsider to the extent that he was from Scotland and had
endured that unwelcoming press on rumours of his judicial appointment.
The next great ―English‖ legal figure admired by Lord Denning in this
lecture was Thomas Erskine, another Scot, who was born in Edinburgh in
1750. He is renowned for his emphasis on the independence of the Bar
and for his defence of freedom of speech.39 A powerful advocate, he
became Lord Chancellor. Then came John Campbell, born in 1781 in
Fifeshire, who became Attorney-General, Lord Chief Justice and Lord
Chancellor. On his appointment as Lord Chancellor, he recommended
Colin Blackburn to replace him on the Queen‘s Bench. Blackburn was
born in 1813 in Dunbartonshire Lord Denning notes that The Times was
unimpressed: ―Who is Mr Colin Blackburn?‖ The only explanation
entertained by The Times for this ―freak‖ appointment was that he was
another ―Scotchman‖.40 According to Lord Denning, however, ―Colin
Blackburn was the greatest lawyer of the nineteenth century‖.41 Many a
student even in the twenty-first century knows, or at least knows of, his
judgment in Rylands v Fletcher.42
Lord Denning continues in this vein when it comes to the twentieth
century, full of praise for the influence on English law of one Scottish
judge after another. Scottish Lord Chancellors of the twentieth century ran
from Lord Loreburn through Viscount Kilmuir at the time of Lord
Denning‘s lecture (and on to Lord Mackay and Lord Irvine later in the
century). Two of the judges in Donoghue v Stevenson were Scottish,
Lords Thankerton and Macmillan,43 both agreeing with Lord Atkin to
form the majority for his famous judgment on the law of negligence. If
Lord Denning himself has a rival for the title of our greatest judge in that
century, it might be Scotland‘s Lord Reid.44
In sum, Lord Denning‘s sparkling lecture shows that we have had at
least three hundred years of Scottish judges developing and illuminating
English law. It is therefore perplexing that there is such outrage at Scottish

39
See Lord Neuberger, Lord Erskine and Trial by Jury, 2012,
https://www.supremecourt.uk/docs/speech-121018.pdf
40
Denning (n 5) 32.
41
Denning (n 5) 32.
42
Rylands v Fletcher (1865) LR 1, Ex 265, LR3 HL 330.
43
Denning (n 5) 35, commenting on Donoghue v Stevenson 1932 AC 562. See
Alan Rodger, ‗Lord Macmillan‘s Speech in Donoghue v Stevenson‘ (1992) 108
LQR 236.
44
Alan Paterson, The Law Lords (Macmillan 1982). See also Louis Blom-
Cooper, ‗The European Convention in an International Legal Setting‘ [1997]
EHRLR 508.

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 LORD DENNING, MAGNA CARTA & MAGNANIMITY

law-makers in Parliament continuing to exercise the practice of three

centuries in voting on the outcome of laws confined to England or to
England and Wales. Unless, that is, there is something wholly different
about judicial and elected law-making. But if there is and it remains
acceptable for Scots to make judicial decisions in English law, then it is
not so obvious why it would be so wrong for non-English judges
elsewhere in Europe to offer their insights into human rights in the legal
system of England and Wales.
Whatever the explanations might be, the fact remains that Scottish
judges have long since made invaluable contributions to the law south of
the border. The quintessential English judge, Lord Denning, spotted this
and used his famous story-telling powers to give a lecture that is in a class
of its own.
The lecture is not beyond criticism. Its last two sentences45 jump to a
conclusion that is not justified by the argument. In expressing the hope
that the two legal systems might eventually become one, Lord Denning
undid some of his good work in recounting the history of Scots lawyers
rising to high judicial office south of the border. On the contrary, an
attraction of the lecture and of the Union is the value of diversity, of
constitutional laboratories within one state.46 Overall, however, this is a
first class lecture which still has the power to surprise lawyers who do not
know the biographies of famous judges of earlier centuries. Omitting the
second part of the penultimate sentence and the whole of the final
sentence, it would have reached this resounding conclusion, saying of
Lord Kilmuir (who was then the Lord Chancellor and had previously been
central to the drafting of the European Convention)47 that, ―He is the latest
of the many men of high principle and great endeavour who have come
from Scotland to England and have enriched the law of these Islands. This
process is much to be encouraged – England borrowing men and
principles from Scotland for the benefit of both‖.48 Who knows whether
this lecture in May 1961 had any effect on Lord Kilmuir‘s
recommendation less than a year later that Lord Denning should become
the Master of the Rolls? More importantly, does the thrust of this lecture
have an application in our own time? To this we shall return after the main

45
Denning (n 5) 39-40.
46
Smith Commission https://www.smith-commission.scot/.
47
Neil Duxbury, Lord Kilmuir: A Vignette (Hart 2015).
48
Denning (n 5) 39. Lord Denning was speaking at a time when it was not
customary to say men and women and when there had not been a woman
appellate judge in either legal system. We still await the first woman Supreme
Court Justice from Scotland.

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 THE DENNING LAW JOURNAL

body of this article looks at the ramifications of a rare Court of Appeal

decision citing Magna Carta.

THEY COME OVER HERE … (PART TWO)

In R v Home Secretary, ex p Phansopkar,49 a strong Court of Appeal

ordered the Home Secretary to consider immigration claims in accordance
with Magna Carta.
The three judges in the Court of Appeal were three of the most well-
known members of the judiciary. Despite the ―Kilmuir Rules‖, named
after the afore-mentioned Scottish Lord Chancellor who feared that too
frequent appearances in the media by judges posed difficulties for their
independence, Lord Denning, Sir Frederick Lawton and Sir Leslie
Scarman revelled in their extra-judicial engagements in the public square.
Six months before this case, in December 1974, Sir Leslie Scarman had
given his famous Hamlyn Lectures on English Law – The New
Dimension.50 In February 1975, one of Sir Frederick Lawton‘s former
pupils became leader of the Conservative Party. Margaret Thatcher went
on to praise her pupil-master for his robust approach to the law, especially
sentencing.51 In fact, Lord Justice Lawton‘s views on sentencing were
nuanced. He did believe in long sentences for crimes of violence. But he
is also credited for popularising the phrase ―short, sharp shock‖ for lesser
offences. The phrase comes from Gilbert & Sullivan, The Mikado, but it
was given a boost by Sir Frederick Lawton who liked to say that he had
spent longer in prison than most hardened criminals, having grown up in
prison as his father was a prison governor.52 The Court was not stacked
for or against the government of the day. Lord Justice Lawton had been a
candidate for a controversial right-wing party in his youth, having earlier
flirted with the extreme Left, but Lord Justice Scarman was widely
regarded as one of the most liberal of our judges. Although the Left used
Lord Justice Lawton‘s past right-wing politics to suggest that the judiciary
might be biased against those less privileged in society,53 in this case all

49
Phansopkar (n 6).
50
Sir Leslie Scarman, English Law – The New Dimension (Hamlyn Lectures,
26th Series 1975).
51
Margaret Thatcher commenting on Sir Frederick Lawton
http://www.margaretthatcher.org/document/107570.
52
Lawton – see obituaries
http://www.telegraph.co.uk/news/obituaries/1321260/Sir-Frederick-Lawton.html.
http://www.theguardian.com/news/2001/feb/05/guardianobituaries1.
53
Paul Foot https://www.marxists.org/archive/foot-paul/1978/04/judges.htm.

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 LORD DENNING, MAGNA CARTA & MAGNANIMITY

three judges ruled in favour of vulnerable individuals seeking a ruling

from the Home Secretary.
Two appeals were heard together by the Court of Appeal on 30 June
and 1 July against the Home Secretary, ex parte Phansopkar and ex parte
Begum, usually reported as R v Home Secretary, ex p Phansopkar. Lord
Widgery, sitting with Ashworth and May JJ, dismissed the case at first
instance on 24 April but Phansopkar won on appeal. Lord Widgery, sitting
this time with Bridge & Stocker JJ had then decided on May 22 that
Begum was indistinguishable from Phansopkar. Although the appellate
judges were not convinced there was a way of distinguishing the two
cases, both were held by the Court of Appeal to be wrong on their merits.
In the conjoined appeals, Lord Denning sitting as the Master of the Rolls,
Lord Justice Lawton and Lord Justice Scarman all relied on Magna Carta.
The timing of this case is also of interest in the light of the new
Westminster government‘s promise of a second referendum on
membership of the European Union before the end of 2017. The
Phansopkar case came as that first referendum on staying in the European
Community was being held in the summer of 1975. The Labour
government was at the same time steering a bill through parliament to
strengthen protection against sex discrimination. It was soon to do the
same against race discrimination, extending the power or its pioneering
1965 and 1968 Acts.. Its Home Secretary was Roy Jenkins. His special
adviser was Anthony Lester QC. The Home Office‘s barrister in the Court
of Appeal was Harry Woolf. It would be difficult to find three more
celebrated characters in our modern history of protecting and promoting
human rights. Yet the Home Office at the time of what could be described
as its greatest glory in terms of progressive legislation was arguing that it
was entitled to send Mrs Phansopkar and Mrs Begum back to India and
Bangladesh respectively and it was the judges who ordered the Labour
government to resolve the matter here in the UK.
This case is too often ignored or overlooked or under-played. It is not
mentioned in any of the Supreme Court Justices‘ Magna Carta lectures. In
his leading judgment in M,54 Lord Woolf only refers to Phansopkar for a
passing point (on which he gives the impression that it was a ruling
requiring an immigration officer to consider the matter whereas the order
of mandamus required the Home Secretary to make a decision). Ten days
before the 800th anniversary however, it does receive a passing mention
from Mrs Justice Patterson in her ruling that the government had delayed

54
M v Home Office, [1994] 1 AC 377.
http://www.bailii.org/uk/cases/UKHL/1993/5.html.

116
 THE DENNING LAW JOURNAL

unduly in providing disability benefit for C and W55. She notes that the
case was cited but seems to take it as settled law, conceded by the
defendants, that unreasonable delay is unlawful and so does not need to
consider the detail of the case law. This is a pity because she later goes on
to reject the Human Rights Act arguments that human rights have been
breached. Lord Justice Lawton in Phansopkar, however, was clear that
fundamental human rights were at stake with corresponding duties and
that those duties not to delay the vindication of rights were imposed on the
executive by Magna Carta.56
Where the case is mentioned in the academic literature, it is usually
for Lord Scarman‘s reference to the European Convention, bolstered by
the Magna Carta argument, even though Lord Denning MR and Lawton
LJ did not rely on the European Convention whereas all three did invoke
Magna Carta. Adam Tomkins thinks the Magna Carta references are
merely obiter dicta.57 A more expansive or inclusive understanding of the
ratio is, I would submit, more in keeping with the tenor of the judgments.
Magna Carta was an ―aid to determining the issues in the case‖. After all,
five different judges at first instance (Lord Widgery CJ sitting in both
cases) had ruled against Mrs Phansopkar and Mrs Begum by looking at
the statute and Rules without contemplating Magna Carta. Lord Widgery
CJ, with whom the other judges agreed, did consider that the Act and
Rules should be read subject to a common law duty but in his judgment
that duty was to be fair between families queuing. It is because the three
judges in the Court of Appeal recalled a prior duty under Magna Carta not
to delay justice that they saw the matter differently. When in doubt about
how general the level should be at which to cast the ratio of a case, we
should let the judgments speak for themselves.

55
C W, disability case
http://www.bailii.org/ew/cases/EWHC/Admin/2015/1607.html.
56
Phansopkar (n 6) 23.
57
A Tomkins, ‗Magna Carta, Crown and Colonies‘ [2001] PL 571: Magna Carta
was cited by all three judges of the Court of Appeal not as an aid to determining
the issues in the case, but as obiter. Lord Denning MR explained that the
Immigration Act 1971, section 3(9) provided that wives of patrials could enter the
United Kingdom by right, rather than by leave, and as such enjoyed an
entitlement, and not a mere privilege. ―Such being her right,‖ Lord Denning
continued, ―I do not think it can be taken away by arbitrarily refusing her a
certificate, or by delaying to issue it to her without good cause‖. His Lordship
then added that in such an event, the woman concerned could ―invoke‖ Magna
Carta. Lawton LJ agreed, stating that the Secretary of State ―cannot refuse to
consider the application, nor can he delay consideration unreasonably. These
duties were imposed on the Crown and its servants by Magna Carta‖.

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 LORD DENNING, MAGNA CARTA & MAGNANIMITY

It is especially important to reconsider Phansopkar fully in Magna

Carta‘s 800th anniversary year in case the Conservative government really
does do anything approaching its manifesto pledge to ―scrap‖ the Human
Rights Act.
The facts of Phansopkar show that the strength of both Magna Carta
and an ―external‖ perspective on human rights can act as an effective
check on a well-intentioned government. The Prime Minister gives the
impression of being furious with European Court of Human Rights judges
for deciding in favour of prisoners and those suspected of terrorism,
against the wishes of what he regards as well-intentioned governments of
different political complexions focusing on the common good in an era of
dangerous threats to security.58
Why has the case been neglected?59 It might be that those pressing for
incorporation of the European Convention on Human Rights were
embarrassed by the facts of the case. Or it could be that obscurity was
caused by the headnote writers who did not include Magna Carta in their
rendering of the holding.60 Or it might have slipped under the radar
because it was difficult for judges sitting alongside Lord Denning to get
much attention for what they said. Lawton LJ and Scarman LJ used the
term ―Magna Carta‖ but Lord Denning, Master of the Rolls, who had
something of a grudge against Latin or at least against those who thought
he had not mastered it or its pronunciation, called it the Great Charter.61
Or it might be that immigration laws, rules and practices changed so
frequently that the significance of the broader issues was lost. Or it could
have been merely that there were so many cases to choose from in the
mid-1970s that custom settled on such later gems from 1975 and 1976 as
Congreve62 or Laker63 or Tameside,64 based on popular media coverage.

58
For David Cameron‘s views, see eg http://www.bbc.co.uk/news/uk-politics-
28339263.
59
For articles which do refer to the case, see eg Tomkins n 58, Anthony Lester
and Jeffrey Jowell, ‗Beyond Wednesbury: Substantive Principles of
Administrative Law‘ [1987] PL 368, Michael Beloff and Helen Mountfield,
‗Unconventional Behaviour? Judicial Uses of the European Convention in
England and Wales‘ [1996] EHRLR 467, Blom-Cooper (n 44), Lord Irvine, ‗The
Spirit of Magna Carta Continues to Resonate in Modern Law‘ (2003) 119 LQR
227.
60
Phansopkar (n 6) 607.
61
Ibid. Although at 617 ‗civis angliae sum.‘
62
Congreve v Home Office [1976] 1 QB 629 follows Phansopkar in the official
law reports of 1976 but happened in November and December of 1975, after
Phansopkar in June and July 1975, in the Court of Appeal.

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 THE DENNING LAW JOURNAL

Avoiding an increase in TV licence fees, liberalising trans-Atlantic travel

and facilitating or inhibiting (depending on one‘s view) school selection
played better than vindicating rights of immigrants. Another way of
putting that, however, is that immigration, mental health and other spheres
where Magna Carta has been applied are Cinderella subjects. This is
where fundamental65 constitutional provisions are especially valuable and
where innovative argument might be needed. No cases were cited in
argument or judgment in Phansopkar at first instance. Counsel understood
the issues of rights under threat and of the rule of law. These Cinderella
subjects are going to the ball much more in the Supreme Court era than in
the time of the Judicial Committee of the House of Lords, partly because
of the Human Rights Act 1998 and the surrounding culture.
For whatever reason, when Ronald Dworkin had the whole of English
or UK law from which to choose a case, he opted for a decision later in
the same year by one of the same judges at first instance, Lord Widgery,
in the Crossman Diaries case.66 He seemed to think that was decided in
the House of Lords. Imagine if he had instead chosen R v Home Secretary,
ex p Phansopkar, where there was a striking difference between the
approach of Lord Widgery and the Court of Appeal. Apart from anything
else, other scholars might also have paid more attention to this case if it
had become subject to Dworkin‘s sweeping jurisprudential analysis.
The substance of the disagreement between the Court of Appeal and
the government on what is fair and reasonable could be put in terms of
that ultimate British value of refraining from queue-jumping. In a learned
article on queue-jumping,67 the property lawyer and property law theorist,
Professor Kevin Gray, does not address Phansopkar. Those, like myself,
who prefer the judgments of the Court of Appeal to the convenience of the
Home Office might prefer a different term, and underlying British value,
to queue-jumping, such as ―taking the initiative‖ or ―taking the matter into
one‘s own hands‖ when faced with excessive bureaucratic delays.
Sibghatullah Kadri appeared for Mrs Phansopkar, Harry Woolf for the
respondents at first instance, Sibghatullah Kadri and Anthony Eton for
Mrs Phansopkar, Eugene Cotran for Mrs Begum on appeal, Harry Woolf

63
Laker v Department of Trade [1977] QB 643.
64
Secretary of State for Education v Tameside [1977] AC 1077.
65
See eg Laws LJ Thorburn v Sunderland City Council [2003] QB 151.
66
Ronald Dworkin, eg Law’s Empire (Harvard University Press 1988), criticised
by S Lee, ‗Law‘s British Empire?‘ (1988) 8(2) OJLS 278.
67
Kevin Gray
http://www.lse.ac.uk/collections/law/projects/techniquesofownership/tech-
gray.pdf.

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 LORD DENNING, MAGNA CARTA & MAGNANIMITY

for the respondents. No cases were cited at first instance and only two in
the Court of Appeal, R v Northumberland Compensation Tribunal68
(where Denning LJ sat as only the second senior judge) and R v Home
Secretary, ex p Mughal,69 where S Kadri appeared before Denning MR
and Scarman LJ, that time sitting with Megaw LJ, and where Gordon
Slynn was for the government. In that case, Lord Denning drew a sharp
distinction between the circumstances of Mr Mughal and of a ―patrial‖.
Lord Widgery CJ, with whom Ashworth & May JJ agreed, explained
that, “The Home Office came into this matter at quite an early stage
because reference was made to them by a member of Parliament who was
interesting himself in the situation of Mr Phansopkar and his alleged wife‖
and rejected the applications because ―it must be remembered that being
fair is not simply being fair to one family. It is a question of being fair to
all those who suffer from this problem, and the Home Secretary is entitled
in my judgment to take the view that in order to be fair to all he should not
allow one family, or one individual, to obtain priority in the queue by such
means as are put forward in this case.‖70
As always, Lord Denning MR set out the facts and legal background
in a compelling fashion:

The husband, Allimiya Bawa Phansopkar, was born in India … He

has produced a marriage certificate issued in India which shows
that in 1962, when he was 27, he married his wife, Maimuna, who
was then 20. The marriage was solemnised at the bride‘s house by
her father, in accordance with the Moslem religion. Their first
child, a girl, was born in January 1964. Two years later, in 1966,
the husband came to England and found work here; but he went
back to India from time to time to join his wife, and they had there
three more children, all boys, born in May 1968, September 1971
and February 1974. Then in March 1974 the husband took a most
important step. He became a citizen of this country; or, more
accurately, a citizen of the United Kingdom and colonies…He
himself thenceforward had ―the right of abode in the United
Kingdom‖. His right was equal to the right of abode of any of us.
You and I and our families have been born here and lived here
from time immemorial. Yet Mr Phansopkar, from the moment he
was registered, had just as much right here as we have. He became
a citizen of no mean country. He could say proudly -- if he spoke

68
[1952] 1 KB 338.
69
[1974] QB 313.
70
Phansopkar (n 6) 610.

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 THE DENNING LAW JOURNAL

Latin -- civis angliae sum. He became a patrial. And not only he.
His wife also obtained at that very moment the selfsame right…
she was a Commonwealth citizen. And, as such, as soon as her
husband, by registration, gained the right of abode in the United
Kingdom, she acquired the selfsame right of abode … ―free to live
in, and to come and go into and from, the United Kingdom
without let or hindrance.‖71

Yet when the Phansopkars tired of waiting in India, where the queue
was long, and took action by flying to Heathrow, Mrs Phansopkar and the
children were refused entry. The immigration officer required them to go
back to India to secure a certificate of patriality. This made sense to the
three judges at first instance but not to the three judges in the Court of
Appeal. Lord Denning continued from his account of her right:72

Such being her right, I do not think it can be taken away by

arbitrarily refusing her a certificate, or by delaying to issue it to
her without good cause. She can invoke the Great Charter: ―To
none will we sell: to no one will we delay or deny right or justice.‖
It seems to me to be implicit in this legislation that a wife, who is
truly a wife, is entitled to apply for a certificate of patriality and to
have her application examined fairly and in a reasonable time.

The Home Office gave no reason except that ―it is considered that
[the] application can be most satisfactorily dealt with by the entry
certificate officer at the British High Commission in‖ Bombay or Dacca
respectively. Lord Denning asked, ―Was that a sufficient reason?‖ and
answered no because73

a wife who applies in Bombay or Dacca for a certificate of

patriality has to join a long queue of those who require leave to
enter. By the time she is granted an interview, 14 months or more
will have passed. The delay was so long that these two ladies, at
any rate, determined to test the matter by coming here and
applying here. In the circumstances I think they were justified in
so doing.‖

71
Ibid 616-7.
72
Ibid 621.
73
Ibid 621-2.

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 LORD DENNING, MAGNA CARTA & MAGNANIMITY

Lord Denning therefore ordered that,74

The Home Secretary ought not to send these ladies back to India
and Bangladesh to face the long delays. He ought to examine the
applications to see whether or not each lady is a patrial, and to
give or refuse a certificate according to whether she satisfies him,
or not.

Lawton LJ began by declaring in forthright terms the point that a right

was at stake and that the Home Secretary was under a duty dating back to
75
Magna Carta:

These appeals concern rights, not privilege. The rights are

fundamental human rights -- of husbands and wives to live
together.‖ The Home Secretary ―cannot refuse to consider the
application; nor can he delay consideration unreasonably. These
duties were imposed on the Crown and its servants by Magna
Carta ... Administrative convenience, however well intentioned it
may have been, cannot be made a justification for depriving
people of their rights or for delaying consideration of their claims
to rights… I would allow the appeal and order that the Secretary
of State for Home Affairs shall consider and determine the
applications for certificates of patriality made by both these
appellants.

Scarman LJ also took the matter seriously as a breach of rights which

could be traced back to a ―hallowed principle of our law‖76 in Magna
Carta, now reinforced by the European Convention:77

The background to these two appeals is disturbing. We have been

told by counsel for the Secretary of State that in 1974, 12,864
entry certificates were granted by overseas offices in the Indian
sub-continent and 859 certificates of patriality. It is significant that
during the year not one application for a certificate of patriality
was refused, though the applicants had to endure the wait in the
queue for 14 months or more… Delay of this order appears to me
to infringe at least two human rights recognised, and therefore
74
Ibid 623.
75
Ibid 623.
76
Ibid 626.
77
Ibid 625.

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 THE DENNING LAW JOURNAL

protected, by English law. Justice delayed is justice denied: ―We

will not deny or defer to any man either justice or right‖: Magna
Carta. This hallowed principle of our law is now reinforced by the
European Convention for the Protection of Human Rights 1950 to
which it is now the duty of our public authorities in administering
the law, including the Immigration Act 1971, and of our courts in
interpreting and applying the law, including the Act, to have
regard: see R v Secretary of State for Home Affairs, ex parte
Bhajan Singh in this court… It may, of course, happen under our
law that the basic rights to justice undeferred and to respect for
family and private life have to yield to express requirements of a
statute. But in my judgment it is the duty of the courts, so long as
they do not defy or disregard clear unequivocal provision, to
construe statutes in a manner which promotes, not endangers,
those rights. Problems of ambiguity or omission, if they arise
under the language of an Act, should be resolved so as to give
effect to, or at the very least so as not to derogate from, the rights
recognised by Magna Carta and the European convention.

Leave to appeal to the House of Lords was granted but no appeal was
pursued. The ratio of the case could be put at various levels of generality.
All three judges, however, framed the case in terms of Magna Carta, both
because of its longevity and because of its fundamental nature. All three
interpreted the common law as reading into the Immigration Act and
Rules that the Home Secretary‘s actions are subject to Magna Carta, now
for Lord Justice Scarman reinforced by the European Convention.
Scarman LJ accepts that express provision in a statute could restrict the
reach of Magna Carta and the Convention. It might have been thought
implausible, however, that a political party would want to push through
Parliament legislation which spelled out that its ministers were to have an
exemption from Magna Carta. It is now just about possible that the current
government has in mind the equivalent of ―Notwithstanding any provision
to the contrary in the Human Rights Act‖ but restricting the ambit of a
statute of 17 years is not comparable to acting contrary to Magna Carta‘s
800 years of imposing duties on those in government. But he is clear that
without an express counter, the statute must be construed so as to conform
to duties under Magna Carta.
The facts of Phansopkar are most relevant to that contentious issue in
contemporary politics of immigration, even though the significance of the
case goes way beyond this context in speaking to us today. Commentators
who might describe themselves as liberal- or Left-leaning criticise
Conservative ministers and media for seeking to demonise immigrants

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 LORD DENNING, MAGNA CARTA & MAGNANIMITY

and to deter or at least delay their entry into the UK. In its broadest
application, the case has been cited in the very month of Magna Carta‘s
800th anniversary by Mrs Justice Patterson in a ruling on unreasonable
delays in disability benefits. Phansopkar itself, however, was a decision in
favour of women from India and Bangladesh against a Labour
government which prided itself on its attitudes to equality on grounds of
race and gender.
Indeed, it is worth recalling that three legendary figures in our human
rights history were, in a sense, on the losing side of this case. Roy Jenkins
was the Home Secretary held to be in breach of Magna Carta, Anthony
Lester QC was his special adviser (although I do not mean to suggest that
he would have advised on individual cases) and Harry Woolf was the
counsel for the Home Office, trying to defend the Labour government‘s
attempt to send Mrs Phansopkar and Mrs Begum back to queues in India
and Bangladesh respectively, rather than resolve their claims where they
were. I say ―in a sense‖ because no doubt the special adviser was busy
drafting the famous laws against race and sex discrimination and was
unaware of the Phansopkar case. Likewise, Harry Woolf was briefed to
argue for the Home Office, not to offer his own opinion on the merits of
this particular immigration claim. It may even be that Roy Jenkins was too
busy on policy questions to focus on the legal or political ramifications of
his great department of state seeking to deport Mrs Phansopkar. In any
event, the Home Office was roundly defeated on appeal.
Lord Justice Scarman had some sympathy for the Home Secretary:
―One final word. This is not a case of an unthinking, heartless exercise of
administrative power. The Secretary of State is clearly, and rightly,
troubled by that queue.‖78 This aspect of Phansopkar is worth belabouring
(be-Labouring) because it shows that with the best of intentions, a
government which prides itself on human rights can be held to have erred.
The current debate is as if the Conservative government‘s self-proclaimed
good intentions of, for example, protecting national security are enough to
render otiose recourse elsewhere. But Phansopkar shows that this is not
so. Turning this the other way round, when a government is defeated on
such grounds, perhaps opponents should not crow so much as if the
government was therefore acting in bad faith. Perhaps this is the root of
Conservative dissatisfaction with being upbraided by European or
domestic judges.
So what became of some of the principal characters involved in this
litigation? The Home Secretary soon became President of the European
Commission and later Lord Jenkins of Hillhead. Anthony Lester became

78
Ibid 628-9.

124
 THE DENNING LAW JOURNAL

Lord Lester, much involved in the movement to incorporate the European

Convention into British law. Harry Woolf became Lord Woolf, Master of
the Rolls and then Lord Chief Justice.
It is clear from the official law reports that counsel for Mrs
Phansopkar raised the issue of the European Convention and a claim of
habeas corpus but the reports are silent on whether counsel themselves
invoked Magna Carta. Counsel for the Home Secretary responded to the
Convention point in raised by counsel for Mrs Begum so presumably
would have replied on Magna Carta if that had been raised explicitly.
Whether counsel invoked Magna Carta or whether the formidable Bench
saw the point was implicit in initial arguments, Sibghat (or Sibgatullah or
Sib) Kadri and Eugene Cotran deserve credit for winning their cases and
for the way in which they were won, with a so far unfulfilled potential to
safeguard fundamental rights. Just as the stream of judges from Scotland
have brought refreshingly different perspectives to English law, counsel
for Mrs Phansopkar had the distinctive experience of having himself been
detained without trial, contrary to Magna Carta, in another part of the
Commonwealth. Both counsel for Mrs Phansopkar and for Mrs Begum
knew what it was to come to the UK from a troubled part of the world.
Even if they did not invoke Magna Carta explicitly, they might well have
led the judges to think of it for themselves.
Sibghat Kadri79 was born in India in 1937, migrating to Pakistan soon
after partition in 1947. He was active in student politics at Karachi
University where he was arrested and imprisoned without trial for
opposing the military regime in 1958. He drafted his own petition for
habeas corpus and secured his own release but was deported to Hyderabad
in 1959. He came to England in 1960. He remained active in Pakistan
politics in England and worked for the BBC as a producer and broadcaster
in Urdu and in English. He was called to the Bar in 1969. After pupillage,
he formed his own set of chambers and then, with Rudy Narayan the
Afro-Asian and Caribbean Law Association which became the Society of
Black Lawyers. He became Queen‘s Counsel in 1989 and a Bencher of
the Inner Temple in 1997. Over decades he has consistently challenged
discriminatory practices and comments in the legal profession, saying
that, ―Even Lord Denning, as brilliant as he was then, was not colour
blind‖, and later successfully calling for Lord Denning‘s resignation over
the publication of his book criticising jurors in the Bristol riot case.

79
http://www.onlinebld.com/lawyer_of_the_month/sibghatkadriqc.html.

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 LORD DENNING, MAGNA CARTA & MAGNANIMITY

Eugene Cotran,80 the lawyer for the other appellant, Mrs Begum, had
been born in Jerusalem. He was a refugee who went to school in
Alexandria and then studied law at the universities of Leeds and
Cambridge. He was stateless before becoming a British citizen. After
working in academe and legal practice in London, he became a High
Court judge in Kenya before returning to the UK to practise as a barrister
and to resume academic work at SOAS. He became the first Arab and
Palestinian circuit judge. He was a Greek Orthodox Christian who had a
lifelong interest in the law surrounding the Palestinian cause, including a
prominent role in drafting its Basic Law. He died in the summer of 2014.
The law report‘s summary of his argument before the Court of Appeal
suggests that he had convinced Lord Justice Lawton who began his
judgment in strikingly similar terms, that the cases concerned a right, not a
privilege.
One of the Phansopkar children, Nawaz, his wife and their children
fled their flat above a grocer‘s shop when it was being destroyed by fire
during the Croydon riots of 2011.81 Indeed, it was press coverage of this
tragedy, linking the name of Phansopkar and the location of Croydon
(where Mr & Mrs Phansopkar went through an English marriage
ceremony, for the avoidance of doubt, before the hearing), which led to
me recalling this case.82

WHAT SAY THE REEDS AT RUNNYMEDE?

Is there any link between the lecture on Borrowing from Scotland and
this case applying Magna Carta? My contention is that there is a common
element. It is a culture of magnanimity, of big-heartedness and openness
towards different ways of looking at the law and society, sometimes from
the past, sometimes from current circumstances, sometimes from afar,
sometimes from nearby.

80
http://archive.thisweekinpalestine.com/details.php?id=2327&ed=148&edid=14
8 (accessed 9 June 2015) https://archive.is/mkUM1 (accessed 10 June 2015).
81
Croydon http://www.telegraph.co.uk/news/uknews/crime/8699765/Counting-
the-cost-of-the-riots-the-street-where-looters-caused-14m-damage-in-12-
hours.html.
82
The connection can be traced by looking at a mapping exercise of India, which
lists names associated with a property as in a private census: the eldest generation
have the names of the litigants in Phansopkar, Nawaz is the second child, one of
the daughters-in-law matches (with a slight variation in spelling in English) the
name of his wife Hayatbi, and four of the grandchildren have the names of those
burned out of the flat in Croydon http://wikimapia.org/1500679/Al-Bawa-House

126
 THE DENNING LAW JOURNAL

Louis Blom-Cooper83 speculated on what might have been if the

Scottish law lord, Lord Reid, whom he described as ―the greatest judge of
our times‖ had lived a little longer and if Phansopkar and two other cases
from the Court of Appeal had gone on appeal to the Judicial Committee of
the House of Lords: ―One can surmise that, had Lord Reid been given the
opportunity to consider the jurisprudence developing in the Court of
Appeal in and around 1975/1976, he would have affirmed the trilogy of
1975 cases84 and applied international legal norms … (Lord Reid retired
on January 10, 1975 and died on March 29, 1975.)‖
One of our current Supreme Court Justices from Scotland, Lord Reed,
has given a most insightful lecture85 on domestic legal systems and the
European Convention on Human Rights, pointing out that France and
Germany do not have the same exaggerated deference to Strasbourg
decisions as has been implied in the British constitutional debate. He has
argued for the resilience and ingenuity of the common law in finding
imaginative ways to develop itself rather than simply deferring to
Strasbourg, pointing out that this is necessary if we are to continue to offer
a good example to the rest of the world in respecting the rule of law. This
could be said to be a fall-back position in case the Human Rights Act is
scrapped and nothing much replaces it on the statute book. More
positively, it can be taken at face value as endorsing the approach adopted
in Phansopkar (although again this case is not cited).
Many of the lawyers who have argued or decided human rights cases
have come from different legal and political systems, such as Sydney
Kentridge QC, Lord Hoffmann and Lord Steyn from South Africa.86 The
Hong Kong final court has even built this into its practice by including a
wide range of judges from outside its own legal system. The experiences
and courage of Sibghat Kadri and Eugene Cotran deserve a place in this
company. In the case of Mr Kadri, for example, he showed ingenuity
before he even studied law in securing his own release under martial law
through habeas corpus. In Phansopkar, he called the Home Office to
account, thanks to the Master of the Rolls and colleagues applying Magna
Carta, and then later he called the Master of the Rolls himself to account.

83
Blom-Cooper (n 44).
84
Phansopkar, Birdi v Home Secretary [1975] SJ 322, R v Home Secretary, ex p
Bhajan Singh [1976] QB 198.
85
Lord Reed
http://www.innertemple.org.uk/downloads/members/lectures_2013/lecture_reed_
2013.pdf.
86
See eg Sydney Kentridge, Free Country (Hart 2012) or ‗Desert Island Discs‘
http://www.bbc.co.uk/programmes/b01rl0z9.

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 LORD DENNING, MAGNA CARTA & MAGNANIMITY

As for Eugene Cotran, he saw himself as a Palestinian refugee and went

on to be a judge in two legal systems in two continents, in Kenya and in
England. His father Michel Cotran, incidentally, had the same distinction,
having been Chief Registrar of the Judiciary in Jerusalem under the
British Mandate, then becoming a refugee in Egypt before becoming a
judge in Nigeria and then Chief Justice of West Cameroon.87
This is not to say there is no merit in English votes for English laws in
the different law-making realm of elected politicians deciding on statutes.
But neither is it especially Conservative to ignore a long history of
insights from across the Border. Borrowing from Scotland points us in the
direction of magnanimity and wisdom in continuing to draw on Scottish
judges, even if a more federal UK is the answer to the West Lothian
question or even if Scotland were to become independent. The UK
Supreme Court does not have jurisdiction in Scottish criminal law, unless
there are human rights arguments, in which case the Scottish judges will
be in a minority.
Lord Denning ended his article in The Times on Magna Carta‘s 750th
anniversary with a quotation from Rudyard Kipling‘s poem, What Say the
Reeds at Runnymede?88 Although prone to go beyond the bare facts to
give some colour to a case, none of the judges in Phansopkar mentioned
how close the scene of the immigration officers‘ refusals was to
Runnymede, where Magna Carta was sealed in 1215. Heathrow is only a
few miles away.
Lord Reed is yet to turn his attention to Magna Carta but for these
purposes the Reeds (to include the Reids) are those judges with
experience of another legal system in these islands89 and of legal systems
on the Continent or those lawyers with a similar spirit of openness to
diverse influences. Borrowing from Scotland and following Phansopkar
are two paths 90 towards the same Holy Grail of a legal system open to
different ways of challenging conventional wisdom at the behest of

87
https://archive.is/mkUM1.
88
Rudyard Kipling, The Reeds of Runnymede (Magna Charta, June 15, 1215).
89
For a different example, see J Lee and S Lee, ‗Humility in the Supreme Court‘
(2015) 26 King‘s Law Journal 165, pointing out that Lord Kerr, the lone dissenter
in R (on Application by Lord Carlile QC and others) v Home Secretary [2014]
UKSC, has distinctive and invaluable experience of balancing rights in a legal
system in conflict from his time as a barrister, judge and ultimately Lord Chief
Justice of Northern Ireland.
90
Lord Denning concludes his book The Discipline of Law (Butterworths 1979)
thus: ‗My plea is simply to keep the path to justice clear of obstructions which
would impede it.‘ 314.

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fearless advocates and pioneering litigants. If we are to be no mean

country, we should not imagine that the past of Magna Carta is a foreign
country, especially at a time when the government is contemplating
fundamental constitutional reform. The spirit of Runnymede, ―The lissom
reeds that give and take, That bend so far, but never break‖,91 can still
speak to the rule of law.92 As Kipling‘s poem concludes:

And still when Mob or Monarch lays

Too rude a hand on English ways,
The whisper wakes, the shudder plays,
Across the reeds at Runnymede.
And Thames, that knows the moods of kings,
And crowds and priests and suchlike things,
Rolls deep and dreadful as he brings
Their warning down from Runnymede93

91
Kipling (n 88), first stanza.
92
Bingham, The Rule of Law (Penguin 2011), especially 10-13.
93
I am grateful to an anonymous reviewer for suggesting the last stanza as
arguably a better explanation of the spirit of Magna Carta because it can explain
the trial of Charles I, on the one hand, and the proper use of the Public Order Act
1936 and 1986, on the other. This has the merit also of reminding us that Kipling
is a more subtle and less bourgeois or jingoist poet than, eg, George Orwell
credits.

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